NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN H. BAKER, an individual, 

Plaintiff-Appellee, 

 v. 

COTTRELL, INC., 

Defendant-Appellant.

No. 19-16431 

D.C. No. 

1:16-cv-00840-DAD-SAB 

MEMORANDUM*

JOHN H. BAKER, an individual, 

Plaintiff-Appellant, 

 v. 

COTTRELL, INC., 

Defendant-Appellee.

No. 19-16528 

D.C. No. 

1:16-cv-00840-DAD-SAB 

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted October 19, 2020**

San Francisco, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without 

oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-16431 

Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

After he sustained a compound leg fracture from falling off the ladder on a 

Cottrell, Inc. automobile transport trailer, plaintiff John Baker sued Cottrell alleging 

liability on theories of strict products liability, breach of an implied warranty, and 

negligence. A jury determined that Cottrell was liable on a single theory of 

negligence. In these cross-appeals, Baker and Cottrell challenge the district court’s 

denial of their respective motions for judgment as a matter of law as well as motions 

relating to alleged discovery misconduct and costs. We have jurisdiction under 28 

U.S.C. § 1291, and we affirm.

1. Cottrell and Baker first challenge the district court’s denial of their 

motions under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 50(b), seeking 

judgment as a matter of law on Baker’s claim for negligence and Baker’s claim for 

breach of the implied warranty, respectively. We review de novo the denial of a 

renewed motion for judgment as a matter of law. Lakeside-Scott v. Multnomah 

Cnty., 556 F.3d 797, 802 (9th Cir. 2009). We view the evidence “in the light most 

favorable to the party in whose favor the jury returned a verdict and draw all 

reasonable inferences in [that party’s] favor.” Id. We may set aside the jury’s verdict 

“only if, under governing law, there can be but one reasonable conclusion as to the 

verdict and only if there is no legally sufficient basis for a reasonable jury to find for 

that party on that issue.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 
3 19-16431 

1146, 1155 (9th Cir. 2010) (internal quotation marks and citation omitted). Neither 

Cottrell nor Baker have demonstrated that standard is met here.

Although a finding of negligent design generally is precluded if a jury finds 

no defect in design for purposes of strict liability, Lambert v. Gen. Motors, 79 Cal. 

Rptr. 2d 657, 659–60 (Ct. App. 1998), the jury’s negligence verdict did not rest on 

a theory of negligent design. Instead, as the district court noted, the negligence 

instructions “turned on whether [Cottrell] was negligent in supplying the ladder.” 

The case on which Cottrell relies does not foreclose a finding of liability under the 

circumstances. See Arriaga v. CitiCapital Com. Corp., 85 Cal. Rptr. 3d 143, 154 

(Ct. App. 2008) (finding no duty to inspect and no negligence where defendant was 

a “passive” “finance lessor” that “had neither the opportunity nor the expertise to 

inspect the machine in order to discover defects”).

As he did in district court, Baker fails to identify meaningfully the elements 

of a breach of implied warranty claim or the specific evidence adduced at trial that 

he contends establish each element of the claim. In light of the instructions given, 

which Baker does not challenge, a reasonable jury could have ruled in favor of 

Cottrell on Baker’s breach of implied warranty claim. See A.D. v. Cal. Highway 

Patrol, 712 F.3d 446, 453, 456–58 (9th Cir. 2013) (discussing burden for obtaining 

judgment as a matter of law and deference to jury findings).
4 19-16431 

2. Cottrell next contends that the district court erred by denying its motion 

under Fed. R. Civ. P. 60(b) for relief from the judgment on account of Baker’s 

alleged fraud stemming from his failure to disclose the contact information for and 

interview notes regarding eyewitness Dennis Jacobson. The district court did not 

abuse its discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 

(9th Cir. 2000). Cottrell was aware of Jacobson and his status as a potential witness 

to the accident at all relevant times; Cottrell ultimately was able to obtain a statement 

from Jacobson and play an audio recording of that statement to the jury. Although 

Baker should have supplemented his disclosures and discovery responses, the 

district court reasonably concluded that, even assuming Baker’s conduct amounted 

to fraud, Cottrell could have discovered the undisclosed information prior to trial 

through the exercise of due diligence and in any event was not prejudiced. See id.; 

Pac. & Arctic Ry. & Nav. Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th 

Cir. 1991). 

3. The district court likewise did not abuse its discretion by denying 

Baker’s motion for expenses pursuant to Fed. R. Civ. P. 37. See Magnetar Techs. 

Corp. v. Intamin, Ltd., 801 F.3d 1150, 1155 (9th Cir. 2015). The district court 

permissibly concluded that Cottrell had a reasonable basis to believe it might prevail 

at trial on Baker’s contentions that Cottrell was partially at fault for his accident, the 
5 19-16431 

ladder was designed defectively, and the ladder was in a used condition at the time 

of sale. See id. at 1161.

4. Finally, Baker contends that the district court abused its discretion by 

failing to award him taxable costs. See Fed. R. Civ. P. 54(d). Generally, a district 

court has discretion to deny a prevailing party’s request for an award of taxable costs 

but must specify its reasons for denying such a request. Berkla v. Corel Corp., 302 

F.3d 909, 921 (9th Cir. 2002). Here, Baker failed to utilize the procedures 

established by the local rules to have the district court review his request in 

accordance with Fed. R. Civ. P. 54. See E.D. Cal. R. 292(e) (“On motion filed and 

served within seven (7) days after notice of the taxing of costs has been served, the 

action of the Clerk may be reviewed by the Court as provided in Fed. R. Civ. P. 

54(d).”). We, therefore, will not disturb the district court’s action.

Cottrell’s motion to file a supplemental brief (Docket Entry No. 39) and 

Baker’s motion to file a replacement reply brief (Docket Entry No. 41) are granted. 

The supplemental and replacement briefs are deemed filed.

AFFIRMED.